Judge issues order on propensity evidence in Purdy trial

Sunday

May 7, 2017 at 3:33 PMMay 7, 2017 at 3:45 PM

CODY MROCZKA, cmroczka@lakesunonline.com

Accusations of past separate alleged sex crimes will be admitted as evidence in the trial against a former Camdenton fast-food business owner charged in relation to an incident involving a minor in 2013.Laclede County Judge Donald Lloyd Barnes issued a ruling in regards to the propensity evidence a few months before Dennis Lee Purdy’s scheduled four-day trial, set to begin Aug. 8, 2017. The 71-year-old Camdenton man is accused of sexually assaulting an underage employee at his former business on June 4, 2013. Purdy was originally arrested by Camdenton Police Department and charged with forcible sodomy - deviate sexual intercourse by forcible compulsion, an unclassified felony; second degree statutory sodomy, a Class C felony; and sexual abuse by the Camden County Prosecutor’s Office. On April 18, 2017, Barnes heard arguments for two separate pending motions, the state’s amended notice of intent to admit propensity evidence and the defense’s motion that a prior ruling by a previous judge is res judicata on the issue, meaning a competent court has already issued a fair decision. Both motions were pending a decision that was handed down on Jan. 31, 2017 by the Missouri Supreme Court in State Ex Rel. Tipler v. Michael Gardner in relation to a 2014 amendment to the state constitution which allows propensity evidence in prosecutions for crimes of a sexual nature involving a victim under 18 years of age. The court rejected the claim by Tipler that the new rule of evidence adopted through the amendment could only be applied to trials occurring after the Dec. 4, 2014 effective date of the amendment.Tipler argued that this provision may not be applied retrospectively. In some cases, that is correct, the ruling stated. However, judicial decisions construing existing constitutional provisions can be given retroactive effect. The difference is that the amendment speaks not to the actual crime but to the trial, according to the ruling, as in the Tipler case.During the motion hearing, Camden County Prosecutor Michael Gilley introduced two witnesses, who were also female minor employees at the time, identified as “S.S. and M.S.,” that testified the defendant had committed similar alleged acts on “separate and multiple or different occasions” during direct and cross-examination, according to Barnes’ order. Barnes found the events testified to by the witnesses were “substantially identical to the acts as will be testified to by K.R.B,” did not infringe on state or federal constitutional rights, and therefore the State may present the propensity evidence testified to during the hearing. The defense, led by attorney Fawzy Simon, had filed a motion arguing previous Judge Kenneth Hayden already issued a ruling on the admissibility of propensity evidence, and therefore already decided. However, Barnes wrote that he found no entry, record or evidence of any ruling made by Hayden on the matter in the court system. “While is it arguable propensity evidence was not admissible in Missouri cases, prior to Tipler, the law on the issue in Missouri has now been substantially clarified,” Barnes wrote. “Under that decision and under the facts as adduced at the hearing on April 18, 2017, propensity evidence sought to be introduced by the state is admissible in the trial of the cause as it now stands irrespective of the date the alleged crimes occurred. According to court documents, it’s alleged the crimes against the victim, “K.R.G.,” occurred in the basement of the Dairy Queen store in Camdenton after she had gone downstairs to retrieve supplies as her job responsibilities entailed. The two witnesses testified that similar sexual acts were committed against them when asked to perform identical type services. In July 2016, a mistrial was declared by Judge Kenneth Hayden after Purdy had entered an Alford plea and a guilty plea to the charges against him. The order was issued when Judge Hayden began reviewing the sentencing assessment report completed by a probation officer with Purdy. Both prosecutor and defense attorneys objected to several portions of the report, which is used to help determine the defendant’s sentencing.The defense objected to several mistakes in the report related to a wrong date, misinformation about Purdy and what Simon called “uncharted and unrelated allegations” regarding the defendant’s character.Judge Hayden granted Simon’s objection based on a recent Missouri court ruling and struck a paragraph in the report that the state had planned to use as propensity evidence against the defendant. Hayden dismissed the pleas due to the conflicts in the report and statements made by Purdy.On April 24, 2017, a change of venue was granted to move the case from Camden County to Laclede County and Judge Barnes was assigned the case. According to CaseNet.com, a full cash bond was transferred from Camden County and posted on April 26, 2017.

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